No social networking privilege

On Point reports that a New Jersey federal magistrate has, to the surprise of no actual attorney I could imagine, ruled that MySpace and Facebook postings and other social networking communications are discoverable in civil litigation.

A New Jersey judge has allowed an insurance company being sued for denying benefits to children with eating disorders to conduct a “cyber-investigation” into the children’s postings on social networking websites.

Such investigations are becoming more common in lawsuits and U.S. Magistrate Judge Patty Shwartz’s decision isn’t likely to calm the fears of privacy advocates. The potential injury to the children from disclosure of their postings, she ruled, did not outweigh Horizon Blue Cross Blue Shield of New Jersey’s need for the information.

Shwartz is handling discovery issues in two insurance coverage cases brought against Horizon by the parents of children suffering from anorexia or bulimia. The cases are Beye v. Horizon and Foley v. Horizon.

“The Court will require production of entries on webpages such as ‘MySpace’ or ‘Facebook’ that the beneficiaries shared with others,” Shwartz said in a Dec. 14 order.

According to a Seattle TV station, Chrysler has taken a similarly intrusive approach by requesting access to the MySpace account of a woman who is suing the auto giant over injuries suffered in an auto accident. Marissa Schneider’s MySpace page includes an admission that she smoked pot in the past.

“To say that anything posted on MySpace is gospel is ludicrous and it really paves the way for you to say, ‘I can never post anything on this site because it’s going to be used against me,’” her attorney told KING 5 News.

I’d consider sanctioning that attorney if he admitted making such a stupid and, really, contumaceous remark. Nothing about information disclosed in discovery is “gospel.” What is “gospel” is decided by the finder of fact. This about pretrial civil disclosure. Should I assume the plaintiffs made no document demands in this case? Excuse me, but I won’t!

Yes, junior, once you, or your mommy and daddy, sue someone, anything you write, whether scribbled in Crayola or typed into your ‘puter or thumbed into your ‘Berry can be held against you — emails, diaries, notes, instant messages, love letters, and postings intended to be read by friends or enemies or no one. It’s been that way for over half a century now.

I am was pretty astonished that Ted Frank seems seemed to see this as a “negative” from the Overlawyered point of view, focusing, I would guess, on the “intrusive” nature of the disclosure ordered. (“Privacy advocates”… uh huh.) (He clarified that he’s not in the comments here.) After all, these are the plaintiffs! No one told them to sue the insurance companies — something I’ve done plenty of myself, and which I recommend to everyone, because their business model is to deny meritorious claims. Fine, but expect to be litigated back, hard. That includes discovery, and lots of it. Why on earth should there be a safe harbor for admissions against interest or other written evidence made on a social networking website as opposed to anywhere else?

Maybe they’ve changed the Federal Rules of Civil Procedure and there’s a privilege for presumptively jejune and ill-thought out pixelated utterances, which of course constitute 90% of what’s on Facebook and MySpace. Um, and blogs, I guess. But who would write anything personal or revealing on a blog?

Time after time, peopel learn that the Internet is not some magical fairyland where you get to say and do whatever you want without consequence. I continue to be surprised that this surprises people.

On a side note, I hope litigators have made “Do you blog?” one of their standard voire dire questions. A litigator might be quite distressed to find that one of the jurors in a medical malpractice case writes for a blog called IHateDoctors.com.

Ron, you are correct as usual. I am continually amazed that people think they have a “privacy” interest in writings they have published on the internet to billions of people worldwide.

That being said, given how common and mundane, if not downright thoughtless (in the sense of with little thought put into it) most internet postings are (especially on Facebook, Tweeter and the like), I would think that eventually juries and judges in bench trials are going to discount all but the most extreme postings.

I mean, ok, the children with eating disorders had emotional problems, and that was probably reflected in their Facebook postings. If I was on the jury, my reaction would be, “yeah, so what?” Similarly, the woman who was suing Chrysler for auto injuries (sounds like a products liability case), admitted she smoked pot in the past. Again, so what? Had she been smoking pot at the time of the accident, or shortly before? If not, her “admission” I find underwhelming.

Expect people in the future to testify something to the effect, “Yeah, I Tweeted that. I just tweet whatever comes into my mind. Didn’t mean anything by it.” And in most cases, juries will buy that.

Check out Clouthub – GetClouthub.com/Ron

The Title, the Blog and the Blogger

The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. I write here about trademark law, copyright law, brands, free speech (mostly as it relates to the Internet) and legal issues related to blogging. That may sound like a lot, but it's just a blog.

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